Burger vans win fight against council to trade near schools

Scott Blair

Burger van operators in North Lanarkshire have defeated a council ban which stopped them from trading near schools.

Nearly 30 businesses took the council to court after it denied them permission to set up within 250 metres of schools.

The council argued having the vans near schools was contrary to its policy of promoting a healthy lifestyle for children.

However, Sheriff Vincent Smith at Hamilton Sheriff Court ruled the council lacked power to impose such a condition on street traders’ licenses.

He said: “That obesity among the general population and children especially is considered problematic is not in dispute.

“That elected representatives wish to confront this problem and take steps to promote healthier lifestyles is to be commended.

“Neither of these is the issue in this case. The issue is whether the defender, as a licensing authority, has the power to impose this particular condition upon the licences of street traders. In my judgement it does not.”

Speaking to Scottish Legal News, counsel for the successful traders, Scott Blair, a licensing specialist at Terra Firma Chambers said: “Sheriff Smith found against the council on a number of distinct legal grounds but essentially Sheriff Smith accepted the argument that the Civic Government (Scotland) Act 1982 does not permit such a restriction on a street trading licence based on the grounds of nutritional quality of the food sold by traders.

“Plainly the decision could well have implications for other local authorities who operate similar controls.

“In response to the judgment there have already been calls from some quarters to amend the 1982 Act to give power to local authorities to do what the Sheriff held the current legislation does not at present permit.”

Stephen McGowan, of TLT Solicitors, who also acted for the affected businesses, said: “I am aware that a number of other Scottish licensing authorities have similar policies which ban snack vans from being located next to schools.

“So, it may be that these policies will be revisited following this judgement, but it is of course now open to the licensing authority to consider any appeal to the Court of Session.”

Jim Logue, North Lanarkshire Council’s learning and leisure services convener, said: “Unfortunately, the primary legislation affecting the licensing of snack vans was enacted in 1982 and does not reflect current widespread concerns regarding health-related challenges from poor diet and lack of activity.

“Childhood obesity is a recognised problem, not just in North Lanarkshire but across Scotland and I believe we have a duty to look after our pupils health.

“Our policy was about sending out a clear message that snack vans parked directly outside the school gates was unacceptable and also that this authority takes its responsibility to look after the health of our young people seriously.”

He added: “I’m now calling on the Scottish government to take action and examine what can be done to tackle this issue.”

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